Indialantic Will Discuss Motel Ruling

April 24, 1985|By Ruth Rasche of The Sentinel Staff

INDIALANTIC — The Indialantic Town Council will meet at 7:30 tonight to decide if it should appeal a Brevard Circuit Court ruling that would permit construction of an eight-story beachside motel on State Road A1A.

The town zoning law prohibits buildings higher than three stories or 35 feet.

But in a ruling filed April 16, Circuit Judge Edward M. Jackson wrote that the Indialantic Board of Adjustment was acting on ''substantial and competent evidence'' last August when it granted a variance to Melbourne attorney James H. Nance.

A three-judge panel voted 2 to 1 in the ruling.

In 1970 the town sold Nance two lots on A1A with the stipulation that he couldn't build anything except a 100-room motel and a dining room seating 100 people. The height restriction was in effect at that time but was not addressed in the sales documents. The restriction is in effect until 1990.

Since then, Nance has bought six adjoining lots. He proposed that he be allowed to build an eight-story, 217-room motel in the center of the 6 1/2- acre site just north of Fifth Avenue.

In his ruling, Judge Jackson said the board of adjustment was told the only way Nance could build an economically viable motel on the two lots he bought from the town would require a 16-story tower ''with obviously resulting eyesore . . . ''

A month after the variance was granted, the Indialantic council, acting on a protest by town resident Emily Bryan, ruled that the board of adjustment had acted improperly when it granted Nance the variance because the proposal violated the town's laws restricting building height, density and distance from the dunes.

Judge Jackson wrote that the town council acted incorrectly because the person who protested was not specific about her objections to the variance and did not provide proof that she lived within 200 feet of the proposed motel, as required by the town's zoning code.

''In addition to the improper consideration of the appeal, Indialantic reversed its board of adjustment without receiving any substantially new and competent evidence on the issue,'' Judge Jackson wrote.

Judge J. Dean Moxley Jr. dissented, saying that the town council was correct to reverse the board of adjustment's decision because there was no ''competent and substantial'' evidence that Nance had a ''unique hardship'' not shared by other property owners in the area. He said deed restrictions on the two lots purchased from the town did pose a unique hardship.

Nance has filed a second suit because the Indialantic board of adjustment has refused to hear his request for a variance to build a 16-story motel on the lots he bought from the town. No date for that hearing has been set.

''The basis of the second suit is that the function of the board of adjustment is to entertain requests for variances,'' Nance's attorney, Elting Storms, said. ''It's wrong for them to deny Nance's request to be heard.''